NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO. 3388 OF 2010
Along with
(M. A. No. 1 of 2010)
(From order dated 20.07.2010 in Appeal No. 297 of 2010 of Karnataka State Consumer Disputes Redresdsal Commission, Bangalore)
1. The Registrar of Manipal
University, Madhav Nagar,
Manipal-576 104
Reptd. by Sri. G. K. Prabhu
2, The Dean,
Kasturba Medical College,
Mangalore,
Reptd. By Sri Rajgopal. …… Revisionists
Versus
Dr. Sushith,
S/o S. Rajiv Puttur,
Aged 32 years,
“Anugraha”
P.O. Panjimogaru,
Kuloor, Mangalore. ….. Respondent
BEFORE:
HON’BLE MR. JUSTICE V. B. GUPTA, PRESIDING MEMBER
For the Petitioners : Mr. Vivek Singh, Advocate
For the Respondents : Mr. B. Subramanya Prasad, Advocate with
Mr. H. Chandra Sekhar, Advocate
Pronounced on: 6th December, 2012
ORDER
PER MR. JUSTICE V. B. GUPTA, PRESIDING MEMBER
Aggrieved by order dated 20.7.2010, passed by Karnataka State Consumer Disputes Redressal Commission, Bangalore (for short, ‘State Commission”) petitioners/o.ps no.1 and 2 have filed present petition .
2. Brief facts are that respondent/complainant got admission to Post Graduate Degree Course in MD in Biochemistry in petitioners’ institution for Academic year 2005-06. Respondent completed and passed the said course in the year 2008. Petitioners are required to issue him a degree certificate confirmed by Manipal Academy of Higher Education. In spite of repeated requests and demand made by respondent to petitioners, it refused to issue the said certificate and withheld the same without any substantial reason or cause. Respondent issued the legal notice but there was no proper response. Hence, respondent felt deficiency in service on the part of the petitioners.
3. On appearance petitioners in their written statement denied all the allegations made by the respondent in toto. According to the petitioners, respondent was selected for the said MD Course for the year 2005. As he had no fund to pay the tuition fee, petitioners gave concession by waiving the payment of the fee. In addition, petitioners paid stipend to him during the course of his studies. There was an understanding between the respondent and petitioners that, respondent should undertake to serve the petitioners for a period of 5 years after completion of the course, failing which he should repay the entire tuition fee. Respondent agreed for the same and executed an agreement on 23.05.2005 alongwith two sureties. Thereafter, respondent failed to abide the said conditions incorporated in the agreement and absented from the duty. Repeated demand made by the petitioners to report to the duty by respondent, went in vain. Petitioners did address a letter to the respondent for compliance but there was no proper response. There is no deficiency in service on the part of the petitioners and they have no objection to hand over the original certificate provided respondent pays Rs.9,30,000/- or furnish a bank guarantee or any other surety for the satisfaction of the Court concerned. Further, it is stated that petitioners have retained the original degree certificate as a lien till the respondent performs the terms of the aforesaid agreement.
4. Dakshina Kannada District Consumer Disputes Redressal Forum, Mangalore (for short, ‘District Forum’) vide order dated 31.12.2009, allowed the complaint and passed the following directions ;
“Opposite Party is hereby directed to handover the original Medical Degree Certificate issued by the Manipal Academy of Higher Education to the complainant. And further to pay Rs. 1,000/-(Rupees one thousand only) as cost of the proceedings. Compliance shall be made within 30 days from the date of this order.
On failure to comply the above said order, the Opposite Party is hereby directed to pay Rs.25,000/- (Rupees twenty five thousand only) as compensation.”.
5. Order of District forum was challenged before the State Commission by the petitioners. The State Commission, dismissed their appeal.
6. Hence, this revision.
7. I have heard the learned counsel for the parties and gone through the record.
8. It has been argued by learned counsel for the petitioners that deficiency of service would arise only in case of breach of agreement by a party providing the service. In this case, there is no breach of contract by the petitioners but it is by the respondent. Further, petitioner was under no liability to perform its part of contract when it has not received the consideration for the same. It is also contended that petitioners could not be forced to provide the certificate for which it has not received any consideration and the same would be in contravention of the provisions of Section 51 of the Indian Contract Act, 1872. Learned counsel has relied upon a decision of Supreme Court in Bihar School of Examination Board Vs. Suresh Prasad Sinha, JT 2009 (11) SC 541.
9. On the other hand, it is contended by learned counsel for the respondent that, petitioners’ university cannot retain the certificate of respondent as per guidelines of the University Grants Commission. Lastly, it has been contended that under no law, petitioners can retain the certificate of the respondent.
10. District Forum in its order held ;
“However, we have gone through the agreement i.e., Ex C5 and R8. On careful scrutiny of the terms and conditions of the said agreement the Opposite Parties waived the tuition fees as well as paid the stipend fee. The Complainant has to serve 5 years in their institution and if the Complainant failed to serve in their institution or violated any of the conditions mentioned in clause No.3 of the said agreement then Complainant is liable to pay Rs.9,30,000/-. According to clause No.4 the Opposite Party has to proceed to recover the said amount only by initiating the proceeding. The entire agreement do not disclose that the Opposite Parties have right to withhold the MD certificate if the Complainant violates the condition of clause No.3 of the agreement. The main contention of the Opposite Party is that as per the terms of the agreement the Complainant has to serve 5 years in their institution and appointment order dated 1.12.2008 was issued and the Complainant was absented from 9.12.2008 and filed leave application and not fulfilled the terms and conditions of the agreement and stated that the MD certificate has retained as general lien. The Section 171 of the Indian contract is not at all applicable to the Opposite Party in which it clearly mentioned to whom the said provision is applicable and under what circumstances. It is not the case of the Opposite Party that the Complainant has handed over the MD certificate to the Opposite Party as security. Hence the question of lien does not arise in this case. In the entire service agreement nowhere mentioned that if the Complainant violates any of the conditions mentioned in clause No.3 the Opposite Parties have got right to retain the MD certificate till the recovery of amount of Rs.9,30,000/-. It is also not proved that the Opposite Party has terminated the Complainant or the Complainant rejected their appointment order. In this case, it is further proved that the Complainant has paid Rs.65,000/- in each year towards the college fees but according to the Opposite Party the above said amount is not covered as tuition fees. Since there is no conditions to retain the Degree certificate of the Complainant in the alleged agreement the question of withholding the certificate does not arise. At the same time the retaining of the degree certificate is compelling the Complainant to serve under the Opposite Party hospital/institution will not meet the ends of justice.
In view of the above stated reasons the MD certificate pertaining to the Complainant retained by the Opposite Party amounts to deficiency in service. Therefore the Opposite Party shall handover the original Medical Degree Certificate issued by the Manipal Academy of Higher Education to the Complainant. And further to pay Rs.1,000/- (Rupees one thousand only) as cost of the proceedings. Compliance shall be made within 30 days from the date of this order”.
11. State Commission while concurring with the reasoning given by the District Forum, in its impugned order observed ;
“ On going through the pleadings of the parties, one thing is clearly established that the complainant completed his course and the Manipal Academy has confirmed him the MD degree in Biochemistry. OPs got the said degree but they failed to give the same to the complainant. Even if it is held for a while that there is breach of the said agreement complainant is liable to refund the tuition fee the remedy is still open to the OP to recover the same be approaching an appropriate Civil Court for the recover of the same. When such an equally efficacious remedy is readily available to the OPs they cannot illegally retain the said degree certificate.
On going through the entire agreement it does not disclose that the OPs have a right to withheld the MD certificate if complainant violates any terms and conditions of the agreement namely either Clause –3 or Clause –4. It is not the case of the OP that complainant has pledged the said MD certificate as a security. Under such circumstances, OP cannot exercise lien over the said certificate. There is no proof that OP terminated the complainant from his service or that he rejected their appointment. On the other hand there is a proof that complainant paid nearly about Rs. 65,000/- each year, towards the college fee.
The DF has properly considered both oral and documentary evidence and rightly come to the conclusion. Retaining of the degree certificate is otherwise compelling the complainant to serve under them. Such kind of practice is not fair. Under such circumstances, we find the appellant has failed to show before this Commission that the impugned order under appeal is erroneous, unjust and improper and that it suffers from legal infirmity, unsustainable in the law and there is error apparent apparent on the face of record requiring our interference. Appeal appears to be devoid of merit”
12. Petitioners have placed on record copy of “Service Agreement” dated 23.05.2005, executed between the parties. This Agreement does not contain any condition or clause by virtue of which petitioners’ University is entitled to retain the degree/certificate of the respondent as a lien till respondent performs the terms of the aforesaid agreement. Under these circumstances, provisions of Section 51 of the Indian Contract Act, 1872 and decision of Bihar School Examination (supra) are not applicable to the facts of the present case.
13. Present revision petition has been filed under Section 21(b) of the Consumer Protection Act 1986 (for short, ‘Act’). It is well settled that the powers of this Commission as a Revisional Court are very limited and have to be exercised only, if there is some prima facie jurisdictional error in the impugned order.
14. Hon’ble Supreme Court in Mrs. Rubi (Chandra) Dutta Vs. M/s United India Insurance Co. Ltd. 2011 (3) Scale 654 has observed ;
“Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two Fora”.
15. Thus, no jurisdiction or legal error has been shown to call for interference in the exercise of power under section 21 (b) of the Act, since two Fora below have given cogent reasons in their order, which does not call for any interference nor they suffer from any infirmity or revisional exercise of jurisdiction.
16. It is not that every order passed by the Fora below is to be challenged by a litigant even when the same is based on sound reasoning.
17. Under these circumstances, present petition is without any legal basis and same is hereby dismissed with cost of Rs.10,000/-(Rupees Ten Thousand only), to be paid to the respondent.
18. Petitioners are directed to deposit demand draft for a sum of Rs. 10,000/- in the name of respondent, within eight weeks from today. Same shall be paid to the respondent after expiry of period of appeal/revision preferred, if any.
19. In case, petitioners fail to deposit the above said demand draft within the prescribed period, then they shall also be liable to pay the interest @ 9% p.a. till realization.
19. List on 15.02.2013 for compliance.
……………………………J.
(V.B. GUPTA)
PRESIDING MEMBER
SSB
